Harold v Jameson & Jameson & Future Print Ltd v Farrell and Others T/A Farrell Grant Sparks

• Jurisdiction: Ireland
• Judge: Hon. Mr Justice Aindrias Ó Caoimh,Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 14 November 2003
• Neutral Citation: [2001] IEHC 127
• Court: High Court
• Docket Number: [No. 5384 P/1993],No. 5384P/1993
• Date: 14 November 2003

[2001] IEHC 127

THE HIGH COURT

No. 5384P/1993

HAROLD & ORS v. JAMESON & ORS

BETWEEN

JOHN HAROLD

PLAINTIFF

AND

CHRIS JAMESON

DEFENDANT

AND BY ORDER CONSOLIDATED WITH RECORD NO. 1995 NO. 8030P

BETWEEN

CHRISTOPHER JAMESON AND FUTURE PRINT LIMITED

PLAINTIFFS

AND

JOHN HAROLD, COLOUR BOOKS LIMITED AND

SICILIAN ESTATES LIMITED

DEFENDANTS

AND

PEARSE FARRELL, GREGORY SPARKS, JOHN O'CALLAGHAN, GRAHAM

CHISHOLM AND MARTIN SCULLY practising under the style and title of

FARRELL GRANT SPARKS CHARTERED ACCOUNTANTS

AND

PATRICK WHITE practising under the style and title of

PATRICK WHITE & CO, SOLICITORS

THIRD PARTIES

Citations:

RSC O.99 r38

COMPANIES ACT 1963 S60

KEANE COMPANY LAW IN THE REPUBLIC OF IRELAND

WALLERSTEINER V MOIR 1974 1 WLR 991

DUNNE V O'NEILL 1974 IR 180

KELLY V BREEN 1978 ILR M 63

COURT & COURT OFFICERS ACT 1995 S27(1)

COURT & COURT OFFICERS ACT 1995 S27(2)

PHELAN HOLDINGS (KILKENNY) LTD V POE KIELY HOGAN UNREP BARRON 15.10.1996 1997/6/2051

AMBIORIX LTD V MIN FOR ENVIRONMENT 1992 1 IR 277

COURT & COURT OFFICERS ACT 1995 S27

COMMISSIONERS OF IRISH LIGHTS V MAXWELL WELDON & DARLEY 1997 3 IR 474

SMYTH V TUNNEY 1993 IR 491

BEST V WELLCOME FOUNDATION LTD 1996 1 ILRM 34

TOBIN & TWOMEY SERVICES LTD V KERRY FOODS LTD 1999 1 ILRM 428

COURT & COURT OFFICERS ACT 1995 S27(3)

MURPHY V DUBLIN CORPORATION 1979 IR 115

JAMESON V FARRELL

Synopsis

PRACTICE AND PROCEDURE

Costs

Taxation of costs - Legal profession - Whether rulings of taxing master unjust - Whether taxing master correctly addressed complexity of case - Whether taxation should be remitted - Rules of the Superior Courts, 1986 Order 99, rule 38 - Companies Act, 1963 section 60 - Courts and Court Officers Act, 1995 section 27 (1993/5384P & 1995/8030P - O Caoimh J - 31/7/01)

Harold v Jameson

The present proceedings concerned a review of the taxation of costs undertaken by the Taxing Master. The original court proceedings concerned monies allegedly owed on foot of an agreement for the sale of shares. In addition further proceedings thereby arose in which a declaration pursuant to section 60 of the Companies Act, 1963 was sought. Both sets of proceedings were consolidated and were eventually settled. At issue were the brief fees and refresher fees allowed to counsel and the instruction fee allowed to one of the parties. Mr. Justice Ó Caoimh was satisfied that the Taxing Master had erred in regard to the complexity of the case and had erred in rejecting comparable cases that had been put to him. In the circumstances the taxation reached was unjust. The matter would be remitted to the Taxing Master to reconsider the brief fees and the instruction fee allowed in the case and also to consider whether it was appropriate to allow costs for two senior counsel.

Judgment of the

Hon. Mr Justice Aindrias Ó Caoimh

1 delivered on 31st day of July, 2001.

2 This is a review of taxation brought by Farrell Grant Sparks under the provisions of Order 99 Rule 38 of the Rules of the Superior Courts to review the taxation by Taxing Master Flynn as to the items on the bill of costs of the second Defendant Colour Books Limited prepared pursuant to an Order of the High Court dated the 24th of October 1997 in respect of which objections were carried in on taxation and in particular as to the following items and/or as to the amounts thereof namely the Brief fees of Senior Counsel and Junior Counsel and Brief fees and Solicitor's professional fees in relation to the briefing of a second Senior Counsel, Second Senior Counsel's refreshers and consultation fees and further the refresher fees allowed to Senior and Junior Counsel in respect of the day of the 24th of October 1997 and furthermore the Solicitor's general Instruction fee.

Background

3 In the proceedings between John Harold and Chris Jameson, Mr Harold brought a claim for £180,000 on the basis that these monies were due and owing by Mr Jameson to the Plaintiff in respect of the sale by the Plaintiff to the Defendant of the Plaintiff's shares in Colour Books Limited. It appears from the Statement of Claim in those proceedings that the sum of £180,000 was stated to be a balance due of a total consideration of £550,000 based upon an agreement between the parties alleged to have been made in December of 1991. In his defence it was pleaded by Mr Jameson, having denied the existence of an agreement as alleged or that any sum was due under it, that if an agreement was entered into between the parties, the Defendant would object that the agreement referred to in the Statement of Claim was void for illegality and that its enforcement would be contrary to public policy in that its execution was obtained by the Plaintiff for the purposes of (1) defrauding the Revenue Commissioners by deceiving them as to the true nature of the terms of the agreement and (2) contravening Section 60 of the Companies Act1963by reason of the Company giving financial assistance whether direct or indirectly for the purchase of shares in the said Company. In replies to particulars in those proceedings it was stated by the Defendant that the payment was effected by means of a series of artificial transactions advised by Messrs Farrell Grant Sparks advisors to the parties and to Future Print Limited which it was claimed had solely as their object the avoidance by the Plaintiff of Revenue liabilities having no commercial purpose.

4 These first proceedings led to the commencement of the second set of proceedings referred to in the title hereof between Christopher Jameson and Future Print Limited as Plaintiffs and John Harold, Colour Books Limited and Sicilian Estates Limited as Defendants. In these proceedings the Plaintiff sought a declaration that the said acquisition agreement between Mr Jameson and Mr Harold and also involving Future Print Limited, Colour Books Limited and Sicilian Estates Limited was in breach of Section 60 of the Companies Act,1963.Further relief sought in those proceedings was an Order declaring the agreements in question to be void and for an Order for recision of the agreements. The Plaintiffs in those proceedings also sought an Order requiring Mr Harold and Colour Books Limited to pay to the second Plaintiff Future Print Limited the sum of £373,000. This was the sum alleged to have been paid by the second Plaintiff to the second Defendant on foot of the agreement in question. The essential claim in those proceedings is that the agreements entered into between the parties were contrary to the provisions of Section 60 of the Companies Act, 1963in that each amounted to the provision of financial assistance for the purpose of and in connection with the purchase of the first named Defendant's shares in the second named Plaintiff. It was pleaded further in these proceedings that the agreements in question were voidable at the instance of the second named Plaintiff.

5 These two sets of proceedings were consolidated by Order of the High Court made in 1995. In the latter proceedings the Defendants filed a full defence denying the Plaintiffs claim. In the course of its defence it was pleadedinter alia on behalf of Colour Books that it was unaware of facts in relation to the transactions it might have entered into with the Plaintiffs in those proceedings or any other parties that did or would have constituted transactions which would be in breach of Section 60 of the Companies Acts,1963or at all. It was further pleaded that if any sums were due by Colour Books to Future Print that Colour Books was entitled to recover from Mr Jameson these monies and any interest thereon together with the costs of the proceedings or alternatively to be indemnified in respect of such matters. Colour Books maintained a counter claim as against Mr Jameson in this regard. Thereafter Colour Books was granted liberty to issue and serve a Third Party Notice on the partners of Farrell Grant Sparks Chartered Accountants and Mr Patrick White Solicitor. The claims against these third parties was on the basis of alleged professional negligence on their part in the furnishing of accountancy, taxation, general financial and/or legal advice in relation to transactions pursuant to which monies were paid to Colour Books Limited and which the Plaintiffs sought to recover.

6 Arthur Cox Solicitors entered an appearance on behalf of the partners of Farrell Grant Sparks and thereafter defences were entered on behalf of those third parties by Arthur Cox and a separate defence was entered on the part of Mr Patrick White by his Solicitors. Notice of trial was served on these proceedings on the 11th of December 1996. On the 23rd of June 1997 further particulars were furnished on behalf of the Plaintiffs Christopher Jameson and Future Print Limited on the other parties in the proceedings furnishing further particulars of loss and damage alleged to have been suffered as a result of the negligence, breach of contract and breach of duty of the Defendants. Under the heading of payment of £250,000 to Colour Books Limited in 1989 a claim of £464,415 was notified involving the principle in the sum of £250,000 and interest in £214,415. Under the heading of Consultancy payment to Colour Books Limited in 1989 a sum of £199,747 was indicated being as follows: principle £133,242 and interest £76,505. Thirdly under the heading payments to professional advisors 1989–1993 a claim was put forward in the sum of £78,773 to include a principle sum of £49,780 and interest in the sum of £28,993. Fourthly particulars were given of a claim for interest paid on late taxes in the period 1989–1995 in the principle sum of £505,595 together with interest in the sum of £351,761 giving a total of £854,356. Further particulars were given of loss under the heading of loss of customers to Colour Books which was quantified in the sum of £386,640, loss of staff to Colour Books tax liabilities including penalties and interest, loss of profits...